Assessing Microsoft’s open-source patent claims

After suggesting previously that Linux violated its patents, Microsoft got more specific over the weekend, asserting in a Fortune magazine article that it and other open-source programs violate 235 of the company’s patents. However, Microsoft is stopping short of saying that it will pursue claims against Linux users. And the company’s specificity only goes so far. From the article:

But he does break down the total number allegedly violated – 235 – into categories. He says that the Linux kernel – the deepest layer of the free operating system, which interacts most directly with the computer hardware – violates 42 Microsoft patents. The Linux graphical user interfaces – essentially, the way design elements like menus and toolbars are set up – run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

As Mary Jo Foley notes, background material distributed to the media by Microsoft’s public relations firm says that the company was motivated in part by proposed changes in the General Public License (GPL) that are intended to counter Microsoft’s intellectual-property deal with Novell. From that background material:

Microsoft is discussing the patent issue even more directly now, with specifics about patent numbers and areas of infringement, in response to continued industry question and concern over the GPLv3’s adoption. Unfortunately, for customers, the Free Software Foundation’s efforts with GPLv3 while not harming existing contracts can harm the desired interoperability and open exchange that we have increasingly seen between proprietary and open source over the past several years.

In response, some people are challenging Microsoft to get more specific. Writes Larry Augustin: “If Microsoft believes that Free and Open Source Software violates any of their patents, let them put those patents forward now, in the light of day, where we can all evaluate them on their merits. If not, then stop trying to bully customers into paying royalties to use Open Source. It’s time for Microsoft to put up or shut up.”

And Groklaw, for one, isn’t worried: “In short, I took it that the Novell deal isn’t working out as well as they thought, and maybe customers aren’t clamoring for those vouchers, and it is harder to find customers than they expected, and now GPLv3 ruined their dreams of wealth from that sort of a deal, so it’s FUD time!”

Dwight Davis, an industry analyst at Ovum Summit, said via phone this morning that this clearly marks “a major shift in how Microsoft is dealing with Linux.”

He said he doesn’t see Microsoft going so far as to sue businesses that use Linux, many of whom are also its own customers. But the saber-rattling could cause big companies to look again at the software they use and calculate their potential exposure. And in the short run, it could be a boon for Novell, because of Microsoft’s covenant under that deal to refrain from suing companies that use Novell’s Suse Linux.

“It’s a risky strategy for Microsoft,” Davis said. “It obviously has calculated that the down side it faces is severe enough that it’s worth alienating a lot of open-source developers and a lot of customers who have embraced open source over the years.”